CASE NO.:
Appeal (civil) 4404-4405 of 1995
PETITIONER:
STATE OF WEST BENGAL AND ORS.
RESPONDENT:
ANAL KUMAR GHOSH AND ORS.
DATE OF JUDGMENT: 28/02/1995
BENCH:
K. RAMASWAMY & B.L. HANSARIA
JUDGMENT:
1995 (2) SCR 391
The following Order of the Court was delivered :
Leave granted.
Admittedly, the respondents were initially appointed as Peons in the Excise
Department of the West Bengal Government. Thereafter, their posts were
converted into Excise Constables and they continued as Excise Constables.
In the year 1970, consequent to the revision of scale of pay, the
Government by its Memorandum No. 10606-F dated September 25, 1978, while
classifying all the employees as Groups ‘A’ to ‘D’, have enumerated in
respect of Groups ‘C’ that those employees drawing the pay or a scale of
pay with a maximum of Rs, 500 but above Rs. 230 would be Group ‘C’
employees. The options have been called for from them including the
respondents and they had opted for the above conditions. Consequently, they
were drawing a scale of pay above Rs. 230. When the respondents reached the
age of superannuation of 58 years, notice of retirement was given to them.
On receipt thereof, they approached the High Court of Calcutta under
Article 226 of the Constitution. Learned Single Judge and the Division
Bench, on appeal, held that by operation of para 2 of the Memo, of the
Governor issued on February 19, 1985, they are entitled to be retained in
service upto the age of 60/65 years, as the case may be under Rule 76 of
the West Bengal Service Rules Part-I and that, therefore, the notice on
retirement was invalid and illegal. They were quashed.
Feeling aggrieved, the present appeals were filed. Shri Santosh Hedge,
learned senior counsel for the appellant, contended that by operation of
the conditions imposed while effecting revision of scale of pay in 1971, as
opted by the respondents, they ceased to be in Group ‘D’ service with
effect from 1971. Therefore, they cannot fall back upon the clarification
issued by the Governor in the aforesaid 1985 Memo, It would apply only to
such of the employees in group ‘D’ service and continued to be so on the
date, the West Bengal (Revision of Pay and Allowances) Rules, 1981, came
into force. The respondents are not continuing as Group ‘D’ service from
1971 and are not entitled to the benefit of the above Memo. We find force
in the contention. Learned counsel for the respondents has sought to
justify the order on the ground that there is a distinction between scale
of pay and the pay. As on April 1,1971, the respondents were drawing their
pay below Rs. 230 and that, therefore, they continued to draw even after
1981 revision of scale of pay and, therefore, they are entitled to be
retained in service till the completion Of the age of 60 years. We find no
force in the contention. It is seen that Chapter X of the West Bengal
Service Rules (Part-I) provides with the heading “Compulsory retirement”:
Rule 76(a) says that Except as otherwise provided in these Rules a
Government employee shall retire from service…..compulsorily w.e.f the
after-noon of the first day of the month in which he attained the age of 58
years. The proviso and other notes are not relevant for the purpose of this
case.
Rule 76 provides that subject to the provisions of sub-rule (b) a Govern-
ment employee in Group ‘D’ service would ordinarily be retained by the
appointing authority to retire form service w.e.f. the afternoon of the
last day of the month of which he attains the age of 60 years ….. Note 2
says that a Government employee who, consequent upon the introduction of
the West Bengal Services (Revision of Pay and Allowances) Rules, 1981 have
become Group ‘C’ employees although prior to such revision of pay scale
they were in Group ‘D’ may be treated as belonging to Group ‘D’ employees
for the purpose of age of retirement who had retained in service upto the
age of 65 years or 62 years, in accordance with the provisions of sub-rule
(a) or sub-rule (b) of this Rule. For all other purposes as for example
disciplinary matters such Government employees shall howsoever be treated
as belonging to Group ‘C.
A reading of these rules vis-a-vis the memo of the Governor relied on by
the respondents and accepted by the High Court, would clearly show that the
Government employees who are in Group ‘C’ service prior to the introduction
of the West Bengal Revision of Pay and Allowances Rule, 1981 alone are
entitled to the benefit of being retained in service upto the age of 60
years, reason is obvious. Rules 50 and 75 clearly enumerates that the
Government servants in Group ‘A’ to ‘C’ shall be required to “compulsorily
retire on attaining the age of 58 years on the last day of the month in
which they attained the age of 58 years.” As seen in the year 1971 the
respondents were in the scale of pay above Rs. 230. Consequently they opted
to be in Group ‘C employees in 1971. When they ceased to be in Group ‘D’
Government employees and entered into Group ‘C’ service in 1971 then they
continued to remain in Group ‘C service for the purpose of compulsory
retirement. They cannot fall back upon the Note 2 or the Governor’s memo in
that behalf since as in 1981 they were no longer in Group ‘D’ service so as
to entitle them to remain in service till they attained the age of 60
years. It is also further to be noted that the benefit given only to the
employees who are continuing in Group ‘D’ employees on the day 1981 revised
pay scales Rules had come into force. Such employees in Group ‘D’ but did
not cross over by promotion to Group ‘C’ service, though were drawing
higher scale of pay are entitled to the benefit of 60 years rule……..The
respondents do not belong to that limited class. Therefore, they are not
entitled for the benefit of 1981 Rules or the Amendment Rules or the
Governor’s Memo. The High Court did not advent to these rules but only to
the Governor’s 1971 or 1981 memo. The appeals are accordingly allowed. It
is now stated that the respondents retired from service. There-fore, their
pension shall be computed on the basis of the pay they have last drawn on
attaining the age of 58 years and the computation and payment shall be made
within a period of 3 months from the date of receipt of this order. The
pensionary benefit shall accordingly be released to them within the
aforesaid period. The appeal is accordingly allowed with the above
directions without costs. It is clarified that if the respondents really
had worked till the attained the age of 60 years, it is needless to mention
that the Government may not recover the pay already paid except any lawful
deductions like lands etc.